Law as a Means to an End: Threat to the Rule of Law (Law in Context) [Paperback]

Brian Z. Tamanaha (Author)

Book Description

ISBN-10: 0521689678 | ISBN-13: 978-0521689670 | Publication Date: October 2, 2006 | Edition: 1

The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.

Editorial Reviews

Review

"Brian Tamanaha's Law as a Means to an End is something very rare--a book that has the potential to change thinking about the law in fundamental ways. The book accomplishes three substantial tasks with admirable brevity, erudition, and clarity. First, it traces the history of 'legal instrumentalism' in Nineteenth and Twentieth century jurisprudence and legal practice--a compelling story that illuminates the origins of our most basic assumptions about law. Second, it traces the pervasive influence of instrumentalist thinking in contemporary legal thought--acutely diagnosing the intellectual underpinnings of phenomena as diverse as 'cause lawyering' and the 'law and economics movement' in the legal academy. Third, it makes a compelling argument that the rise of instrumentalism has a fundamentally corrosive effect on the rule of law. This is not just an important book--it is THE important book of legal theory for this decade. Law as a Means to an End is superb."
--Lawrence Solum, John E. Cribbet Professor of Law, University of Illinois College of Law


"The great scholar Grant Gilmore once asked in the title of a fascinating book, 'Is Contract Dead?' and went on to answer, 'yes.' Brian Tamanaha does him one better. In this book he asks, 'Is Law Dead?' His answer: 'almost.' Law, he reports, is in danger of succumbing to instrumentalism and as such losing its vitality. Much of modern legal scholarship seeks to make law a branch of applied economics. This book pushes against that movement, as well as many other related "realist" movements. Whether one agrees or disagrees with Tamanaha, he or she will be wiser after having read this fine book."
--Malcolm M. Feeley, Claire Sanders Clements Dean's Professor, Boalt Hall School of Law, University of California at Berkeley


"Brian Tamanaha sounds a firebell in the night. He shows how the most progressive modern approaches to law, by undermining beliefs in its objectivity and formal rationality, and its rootedness in natural or customary standards of right conduct, have fatally undermined its claims to restrain power-seeking or serve the common good. Law is now seen simply as an instrument -- not as a limit on greed and power, but a means by which interests pursue their own selfish ends. And it's not only interest-groups and their lawyers, but judges and jurists, who have signed on to an instrumentalism that challenges the very ideas of the rule of law and the public interest. Tamanaha is not a nostalgic romantic. He does not think the old days can or should be recovered. He does not tell us what to do. But he illuminates our predicament with succinct history, clear-headed observation, and unflinchingly bleak analysis."
--Robert W. Gordon, Chancellor Kent Professor of Law and Legal History, Yale University


"Taken as a whole, Tamanaha's book makes a significant contribution to the scholarly understanding of the rule of law in American jurisprudence....Tamanaha's book provides a superb overview of the emergence of instrumentalism as the primary perspective on law in contemporary America. The evidence he marshals to support this conclusion is impressive, leaving little doubt as to the validity of his assertions...Law as a Means to an End is an outstanding treatment of an important scholarly question with profound normative implications for American society."
--Paul M. Collins, The Law and Politics Book Review


"...In Law as a Means to an End, Tamanaha argues that the instrumental view of law, coupled with a general breakdown in our ability to reach a cencensus about which ends law should serve, poses a serious risk to the rule of law..."
--Robert T. Miller, Villanova University School of law, FIRST THINGS

Book Description

Drawing upon legal history, legal theory, and legal sociology, this book presents an intellectual history of the U.S. legal culture which elaborates on the various developments that have led to and structure the present worrisome legal-political situation.

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Product Details

• Paperback: 268 pages
• Publisher: Cambridge University Press; 1 edition (October 2, 2006)
• Language: English
• ISBN-10: 0521689678
• ISBN-13: 978-0521689670
• Product Dimensions: 9 x 6.1 x 0.7 inches
• Shipping Weight: 12.8 ounces (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (2 customer reviews)
• Amazon Best Sellers Rank: #585,626 in Books (See Top 100 in Books)

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26 of 26 people found the following review helpful:

5.0 out of 5 stars An Important Critique of the Pragmatic Theory of Judging, December 31, 2006

By 

John P. (Kennett Square, PA USA) - See all my reviews

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This review is from: Law as a Means to an End: Threat to the Rule of Law (Law in Context) (Paperback)

Professor Tamanaha makes a very important point here about the pragmatic theory of judging. Pragmatic judging -- an approach advocated most eloquently by Judge Richard Posner in a number of books and other writings -- means in essence that, when faced with an issue that is not clearly resolved by the existing law, the judge should resolve the issue in the way that he or she thinks makes the most sense, all things considered, for the parties and society. This approach obviously gives judges a lot of leeway, since "what makes the most sense" is something that no two people are likely to agree upon. Posner thinks that that is OK because judges do it anyway, and so we might as well be up front about it.

Tamanaha's response is twofold. First, he argues that Posner exaggerates the extent to which judges typically resolve issues according to their private biases instead of what legal reasoning points to as being correct (or most nearly correct). Second, Tamanaha argues that there is a major difference between a judge who says, "I can and should resolve issues based on what I think makes the most sense *except when* the law *clearly resolves* the issue," and a judge who says, "I can and should resolve issues based on what I think makes the most sense *only when* the law *truly does not resolve* the issue." In other words, the pragmatic judge gives himself free rein whenever he can, while the traditional judge gives himself free rein only when there's really no other choice.

This argument is most clearly laid out in the last chapter of "Law as a Means to an End." If you're familiar with the terms of the debate, you could read that chapter by itself with benefit. The rest of the book provides a history of the instrumental view of law and the effects that Tamanaha believes the instrumental view has had on the U.S. The "effects" part of Tamanaha's argument was not totally convincing for me. For example, he argues that the change (roughly around 1900-1940) from a predominantly non-instrumental view of law to a predominantly instrumental view led people to see law as the main way of changing society however they want, by causing the government to change the law. But one could as plausibly argue that it was the explosive growth of legislation and regulation during the same period (for reasons other than a changing philosophy of law) that led people to see government, through its law-making function, as the main way of changing society, and that the instrumental point of view took hold as a result.

In addition, I'm not sure that instrumental vs. non-instrumental is the most accurate way to frame the issues Tamanaha discusses here. Law has always been seen as a means to an end -- as promoting something good outside itself (morality, justice, civil order, etc.). The difference between what Tamanaha calls the non-instrumental and instrumental views is the degree to which those views take law to be malleable. The non-instrumental view sees the means and ends of law as relatively fixed, whereas the instrumental view sees the means and ends as being freely changeable. This does seem to be Tamanaha's real point -- the image he uses to demonstrate instrumental thinking is of the law as an "empty vessel" that law-makers can fill with whatever they want. "Instrumentalism" merely seems to me to be an inaccurate way of capturing the debate.

In any event, Tamanaha's overarching argument provides a strong and needed qualification to the pragmatic approach.

2 of 2 people found the following review helpful:

5.0 out of 5 stars I wish I had read this book long ago, June 12, 2009

By 

Thomas "tacsmith" (Jamul, US, Canada) - See all my reviews
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This review is from: Law as a Means to an End: Threat to the Rule of Law (Law in Context) (Paperback)

I'm a legal scholar interested in this area though my usual area is corporate and commercial law. This is an excellent book. Although I gather BT has refined his views somewhat since he wrote this, it is I think a very useful and fresh way to look at the course of American jurisprudence, and based on other research I have done, accurate as well. BT has a crisp and unpretentious writing style and his arguments are straightforward. I have not quite finished the book, but based on first 2/3 I am already very glad I picked it up. He is admirably even-handed. At a few points one can tell he leans against more conservative views such as originalism and law & economics, but he does not seem to let this influence his judgments.

I suppose one could criticize that the book could have been more ambitious theoretically, but given that so much legal scholarship these days is failed theory, I am glad it is pitched as it is. The book weighs in at 230+ pages, but would be longer than that in print you could read without glasses. The Kindle edition does not have an active TOC which is unfortunate.

The narrative qualities of the book make it a good read. I think the story it tells is almost tragic, but it is compelling. I wish there had been a book like this to read 25 years ago when I was in law school. It would have made the theoretical muddle I found so frustrating then more understandable, at least in the sense I would have understood how things got to be the mess they were. Very highly recommended.